S.B. 1297: Online Message Board Discussions

Recent legislation has attempted to allow some discussion amongst members of a governmental body outside of an open meeting using the Internet. Senate Bill 1297, a bill that passed during the Eighty-Third Legislative Session, adds a provision to the Texas Open Meetings Act that is effective September 1, 2013. This provision provides that communication between councilmembers about public business or public policy over which the council has supervision or control does not constitute a meeting if certain conditions are met. The communication must be:

in writing;

posted to an online message board that is viewable and searchable by the public; and

displayed in real time and displayed on the message board for no less than 30 days after the communication is first posted.

A city is prohibited from having more than one online message board used for these purposes. Additionally:

The online message board must be prominently displayed on the city’s primary website and no more than one click away from the city’s website.

The message board may only be used by city councilmembers or city employees that have received authorization from the council.

If a city employee posts on the message board, the employee must include his or her name and title with the communication.

The council may not vote or take action by posting on the city’s online message board, and if the city removes a posted message, the city must retain the posting for six years.

Facebook should satisfy the requirements of S.B. 1297. If a city intends to use Facebook as the city’s sole online message board, the city must ensure that the Facebook page is “public” and viewable by the public. Additionally, a disclaimer underneath the link from the city’s main page and on the Facebook page should be displayed with language stating that the page is in compliance with S.B. 1297 and only members of the city council or staff members authorized by the council may post on the board. A section-by-section analysis of the Government Code provision added by the bill is available at http://www.tml.org/p/SB-1297-and-Facebook-July2013.pdf.

Other than the exception created by S.B. 1297, city officials should remember that communications between a quorum of a city council about public business, no matter the forum or the time, can be a “meeting” to which the Open Meetings Act applies. If the Act applies to a discussion, an agenda must be posted 72 hours in advance, and the public must be able to attend. It is essentially impossible for a private Facebook post or discussion to meet those requirements.

As such, city councilmembers should avoid commenting on private Facebook posts related to city business if the discussion will ultimately involve a quorum. (Note: Less than a quorum can also violate the Act by having secret deliberations to circumvent the Act’s requirements. Thus, city officials should always use caution with social media.).

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.